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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Duggan, R (on the application of) v HM Assistant Deputy Coroner for the Northern District of Greater London & Ors  EWHC 3343 (Admin) (14 October 2014)
Cite as:  3 All ER 237, 179 JP 1, (2015) 179 JP 361,  Inquest LR 232,  WLR(D) 431,  WLR 525, (2015) 179 JP 1,  EWHC 3343 (Admin),  1 WLR 525
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(THE RT HON SIR BRIAN LEVESON)
THE HON MR JUSTICE BURNETT
HIS HONOUR JUDGE PETER THORNTON Q.C.
| THE QUEEN
(ON THE APPLICATION OF PAMELA DUGGAN)
|- and -
|HER MAJESTY'S ASSISTANT DEPUTY CORONER FOR THE NORTHERN DISTRICT OF GREATER LONDON
|COMMISSIONER OF POLICE FOR THE METROPOLIS
NATIONAL CRIME AGENCY (formerly SERIOUS ORGANISED CRIME AGENCY)
S.C.& O.19 OFFICERS
INDEPENDENT POLICE COMPLAINTS COMMISSION
DS ANDREW BELFIELD
DC STEVE FAULKNER
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Birnberg Peirce, London) for the Claimant
Ashley Underwood Q.C. (instructed by Judi Kemish)
for the Assistant Deputy Coroner
Hugo Keith Q.C. (instructed by the Director of Legal Services, Metropolitan Police)
for the Commissioner of Police for the Metropolis
Samantha Leek Q.C. (instructed by Simon Armstrong of the N.C.A. Legal Department)
for the National Crime Agency
Ian Stern Q.C. and David Patience (instructed by Slater Gordon, London)
for S.C.& O.19 Officers
Jonathan Glasson Q.C. (instructed by Legal Services I.P.C.C.)
for the I.P.C.C.
Z51, DS Andrew Belfield and DC Steve Faulkner did not appear and were not represented.
Hearing dates: 9-10 July 2014
Crown Copyright ©
Sir Brian Leveson P:
i) The Coroner ought to have directed the jury that if they were sure Mr Duggan did not have a gun at the moment he was shot, they could not return a conclusion of lawful killing. That was necessary to avoid inconsistent conclusions, and to avoid a conclusion for which there was not sufficient evidence.
ii) A mistaken belief in the existence of an imminent threat cannot found a conclusion of lawful killing at an inquest unless it was also a reasonable mistake. That is the first part of the civil, but not criminal, test for self-defence in English law. The claimant submits that the jurisprudence of the European Court of Human Rights ["The Strasbourg Court"] requires the reasonableness criterion to be included; alternatively it is submitted that this court should decide that the domestic civil law test is the appropriate one for a conclusion of lawful killing at an inquest, albeit not for unlawful killing.
iii) In any event, the Coroner misdirected the jury on the meaning of lawful killing because he failed to make it clear that they should be satisfied on the balance of probabilities that V53 mistakenly believed in an imminent threat, rather than that he may have believed in that threat.
iv) Lethal force by a state agent is only lawful if it is 'absolutely necessary' in all the circumstances it is not enough that the force was 'reasonable'. On the facts of this case the difference between the two tests was sufficiently great to result in a breach of the procedural obligation under Article 2.
Mitting J refused permission to apply on the first and fourth grounds but granted permission on the second and third. Mr Michael Mansfield Q.C., for the claimant, renews the application in relation to the grounds where leave was refused. He also submits that grounds (ii) to (iv) should be considered cumulatively when deciding whether there was a breach of the procedural obligation under Article 2 Convention for the Protection of Human Rights and Fundamental Freedoms as reflected in English law by the Human Rights Act 1998 ["the ECHR"].
How did the gun get to the grass area where it was later found?
The jury, in a majority of 9:1, concluded that Mark Duggan threw the firearm onto the grass.
Of the 9, 8 have concluded that it is more likely than not, that Mark Duggan threw the firearm as soon as the minicab came to a stop and prior to any officers being on the pavement.
1 concluded that Mark Duggan threw the firearm whilst on the pavement and in the process of evading the police.
1 juror was not convinced of any supposition that Mark Duggan threw the firearm from the vehicle or from the pavement because no witnesses gave evidence to this effect."
"When Mr Duggan received the fatal shot did he have the gun in his hand?"
The jury were provided with three possible answers to that question: (a) We are sure that he did not have a gun in his hand. (If that were their answer, they were directed to go on to consider conclusions of unlawful killing, lawful killing or an open conclusion) (b) We believe it more likely than not that he did have a gun in his hand. (If that were their answer they were directed to go on to consider lawful killing and an open conclusion) (c) We believe it more likely than not that he did not have a gun in his hand. (If that were their answer they were directed to go on to consider lawful killing and an open conclusion).
The Background Facts
"It is 804 days since this happened and I'm 100% convinced he was in possession of a gun on shot one and shot two."
"Phone always in hand. Initially thought gun. Shiny. But read N/Papers then thought it was Blackberry. If had gun he would have aimed it at them."
Ground One: the verdict of Lawful Killing
Ground 2: the nature of the test for Lawful Killing
a) Self-defence for the purposes of both criminal and civil law in England and Wales;
b) The meaning of unlawful killing and lawful killing as conclusions at an inquest;
c) The content of the Article 2 procedural obligation;
d) The Strasbourg jurisprudence on the meaning of justifiable killing by state agents in the face of perceived threats, together with its view of the law of self-defence in England and Wales.
The Law of Self-Defence in England and Wales
"3 As to the first issue, the test for self-defence as a defence in a civil action is well established and well understood. There is no reason in principle why it should be the same test as obtains in a criminal trial, since the ends of justice which the two rules respectively exist to serve are different. There is nothing to suggest that the civil test as currently applied causes dissatisfaction or injustice and no case is made for changing it, even if that were an appropriate judicial exercise. I would not wish to inject any note of uncertainty into the current understanding of this rule."
"The reasonableness or unreasonableness of the defendant's belief is material to the question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt is concerned, is neither here nor there. It is irrelevant If the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts; that is so whether the mistake was, on an objective view, a reasonable mistake or not
In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case. If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected."
"If D claims to have held a particular belief as regards the existence of any circumstances
(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
(b) if it is determined that D did genuinely hold it, D is entitled to rely on it whether or not
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was a reasonable one to have made."
Unlawful and Lawful Killing as Conclusions at an Inquest
"the purpose of the proceedings shall not include the finding of any person guilty and accordingly a coroner's inquisition shall in no case charge a person with any of those offences."
"A lawful killing is one which is deliberate, and which would amount to murder but for the presence of an additional factor which justifies it."
The same understanding was reflected in Sharman in the Administrative Court at paragraphs 13 and 33. It was not questioned on appeal  EWCA 967. So too in R (Bennett) v. H.M. Coroner for Inner London South both at first instance  EWHC 196 (Admin) and in the Court of Appeal  EWCA Civ 617, the question whether a killing was lawful was judged by the two-limbed test found in the criminal law.
The Article 2 Procedural Obligation
"129. None the less, unlike the McCann inquest, the jury's verdict in this case may only give the identity of the deceased and the date, place and cause of death. In England and Wales, as in Gibraltar, the jury is able to reach a number of verdicts including 'unlawful death'. As already noted, where an inquest jury gives such a verdict in England and Wales, the DPP is required to reconsider any decision not to prosecute and to give reasons which are amenable to challenge in the courts. In this case, the only relevance the inquest may have to a possible prosecution is that the Coroner may send a written report to the DPP if he considers that a criminal offence may have been committed. It is not apparent however that the DPP is required to take any decision in response to this notification or to provide detailed reasons for not taking any further action
130. Notwithstanding the useful fact-finding function that an inquest may provide in some cases, the Court considers that in this case it could play no effective role in the identification or prosecution of any criminal offences which may have occurred, and in that respect, falls short of the requirements of art. 2."
"To meet the procedural requirement of Article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury's conclusion on the disputed factual issues at the heart of the case." (paragraph 20)
In paragraph 31, Lord Bingham confirmed that short verdicts in the traditional form would enable the jury to express their conclusion and satisfy the procedural obligation in many cases. He cited McCann as an example where the jury had been left with alternatives of unlawful killing, lawful killing and an open verdict. He recognised (paragraph 32) that there would be some inquests where the traditional short form verdict would not satisfy the Article 2 procedural obligation. Middleton was a case in that category. The deceased had taken his own life in prison. The central factual issue was whether appropriate precautions had been taken to guard against the risk of his doing so. In such cases the jury should be able to express their view of the circumstances in which someone came by his death (paragraph 33).
"This may be done by inviting a form of verdict expanded beyond those suggested in form 22 of schedule 4 to the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury's factual conclusions are briefly summarised. It may be done by inviting the jury's answer to factual questions put by the coroner It would be open to parties appearing or represented at an inquest to make submissions to the coroner on the means of eliciting the jury's factual conclusions and on any questions to be put, but the choice must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown." (paragraph 36)
He continued by emphasising the need to ensure that the jury's conclusion did not infringe the statutory prohibition against naming an individual considered by the jury to be criminally responsible for a death; neither should it appear to determine civil liability (paragraph 37).
Strasbourg and justifiable killing
"Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest to prevent escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."
"153. The Court recalls that the Convention does not oblige contracting parties to incorporate its provisions into national law. Furthermore, it is not the role of the Convention institutions to examine in abstracto the compatibility of national legislative or constitutional provisions with the requirements of the Convention.
154. Bearing the above in mind, it is noted that the Gibraltar Constitution is similar to Article 2 of the Convention with the exception of the standard that justification for the use of force which results in the deprivation of life is that of "reasonably justifiable" as opposed to "absolutely necessary" in Article 2(2). Whilst the Convention standard appears on its face to be stricter than the relevant national standard, it has been submitted by the Government that, having regard to the manner in which the standard is interpreted and applied by the national courts, there is no significant difference in substance between the two concepts.
155. In the Court's view, whatever the validity of this submission, the difference between the two standards is not sufficiently great that a violation of Article 2(1) could be found on this ground alone."
"Accordingly, the Court finds that, while it might be preferable for an inquest jury to be directed explicitly using the terms "absolute necessity", any difference between the Convention standard, on the one hand, and the domestic law standard and its application in the present case, on the other, could not be considered sufficiently great to undermine the fact-finding role of the inquest or give rise to a violation of art. 2 of the Convention."
"The Court accepts that the soldiers honestly believed, in the light of the information that they had been given that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life. The actions which they took in obedience to superior orders, were thus perceived by them as absolutely necessary in order to safeguard innocent lives.
It considers that the use of force by agents of the State in pursuit of one of the aims delineated in Article 2(2) of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and others."
The formulation in the second part of this paragraph has been repeated by the Strasbourg Court in cases since.
"The relevant domestic case law establishes that the reasonableness of the use of force has to be decided on the basis of the facts which the user of the force honestly believed to exist: this involves the subjective test as to what the user believed and an objective test as to whether he had reasonable grounds for that belief. Given that honest and reasonable belief, it must then be determined whether it was reasonable to use the force in question in the prevention of crime or to effect an arrest."
There is a reference in the footnote with citations in support of those propositions to Gladstone Williams drawing special attention to page 281 of the report in the Criminal Appeal Reports.
"[It] is not for the Court with detached reflection, to substitute its own opinion of the situation for that of police officers who were required to react in a tense situation in which they were facing an armed and dangerous individual, and errors of judgement or mistaken assessments, unfortunate in retrospect, will not in themselves entail responsibility under Article 2 (see, amongst other authorities, Andronicou and Constantinou at 192, and Brady)."
In the paragraph cited from Andronicou 25 EHRR 491 the judgment accepted that the officers who were responsible for the lethal force in question honestly believed that it was necessary to kill. The Court then repeated that McCann formulation.
Ground Three: the direction
"Lawful Killing. If you conclude that it was more likely than not that the fatal shot which killed Mark Duggan was the use of lawful force then you would return a conclusion of lawful killing."
It is its juxtaposition with the written direction on unlawful killing which, submits Mr Mansfield, could have led to confusion and the use by the jury of a test which was in fact less exacting than the balance of probabilities. The written direction was:
"You would have to be sure that the act done was unlawful - that is that it was not done in lawful self defence, or in defence of another, or in order to prevent crime. It is not for V53 to prove that he did act lawfully - before you conclude that his act was unlawful you must be sure that it was unlawful.
Any person is entitled to use reasonable force to defend himself or another from injury, attack or threat of attack. If V53 may have been defending himself or one of his colleagues go on to consider two matters:
1) Did V53 honestly believe or may he have honestly believed, even if that belief is mistaken, that at the time he fired the fatal shot, that he needed to use force to defend himself or another; if your answer is NO then he cannot have been acting in lawful self-defence and you can put that issue to one side; if your answer is YES go on to consider:
2) Was the force used reasonable in the all the circumstances?
The question whether the force used by V53 was reasonable is to be decided by reference to the circumstances as V53 believed them to be but the degree of force is not to be regarded as reasonable in the circumstances as V53 believed them to be is it was disproportionate in those circumstances."
The Coroner gave oral directions to the same effect.
Ground Four: reasonable use of force and absolute necessity